Justice Is Elusive With Out-of-focus Videotaping Policies

October 28, 1999|By Eric Zorn.

Predictably, the second dispute in as many months has erupted in a major Cook County murder case over the practices and procedures used in videotaping confessions.

In late September, the attorney for Eugene Rivers, a suspect in a string of sex murders on the South Side, told reporters that Rivers' videotaped confession was invalid because police "physically and mentally coerced and assaulted" Rivers before turning on the camera.

And this week, the public defender for Leo Foster, the man charged with the fatal shooting of the son of U.S. Rep. Bobby Rush, is saying the lack of a videotaped record of Foster's alleged confession in the case is extremely suspicious and lends credence to the claim that police beat Foster while he was in custody.

Prosecutors say Foster denied their request to videotape his confession, but that he did sign and initial an incriminating statement written for him by prosecutors.

Is there some sort of record of this denial? "No," said Bob Benjamin, spokesman for Cook County State's Atty. Richard Devine. "He must have just declined. It's our policy to ask, but only if a person agrees to the videotaping does he or she sign a form giving permission and then repeat that permission on tape."

"I'm sorry, that defies logic to me," said Foster's attorney, Marijane Placek. "If a suspect really is cooperating, really does understand that the prosecutor is not his lawyer and really does know that what he says is likely to help him get the needle, why would he suddenly balk at the way prosecutors want to memorialize his statement? Why would he instead prefer to sign a statement that uses someone else's words? It's absurd."

She's right. It is absurd. But, then again, it's pretty absurd to kill someone and risk life in prison or the death penalty for a couple of hundred bucks, which is what police say Foster and an accomplice did Oct. 18 when they fatally shot Huey Rich, 29. So whoever the killers are in this case, they're probably not blessed with great reasoning skills.

Then again, just thinking out loud here, maybe Foster was under extreme physical or psychological duress while in custody and tried to put an end to it by telling investigators what he thought they wanted to hear. It's happened. Chicago police have been known to torture suspects, and false confessions, a documented problem in criminal justice, have been known to result.

Or, guilty or innocent, maybe Foster realized that, at trial, it would be easier to contest a signed confession than one on videotape. That's canny, not absurd.

Also, it's not impossible that suspect Rivers, worn down from alleged sustained brutal treatment while in police custody, "started making up stuff" for the video camera and also "repeated details that police spoon-fed to him," as attorney Joseph R. Lopez reiterated Wednesday.

Yet should these men be a couple of depraved killers trying to slither out of self-made rhetorical nooses by making up stories about station-house beatings, they wouldn't be the first.

That such controversies and counter-claims would arise after the advent this summer of videotaped confessions in Cook County was inevitable. The historical problem with confessions is that judges and juries consider them out of the context of the suspect's time spent in custody. Simply switching media was never going to eliminate the questions and disputes, though anecdotally it has reduced them.

Investigatory practices and the state eavesdropping law need to be changed as soon as possible so that in serious criminal matters, all custodial contact with police and prosecutors is preserved on videotape with sound. Several states do this and find it works; DuPage County started doing it earlier this year and Illinois Atty. Gen. Jim Ryan has called for such a reform in a letter to a state legislative hearing panel that appears inclined to favor the idea:

Said Ryan, "Use of videotape (in interrogations as well as confessions) will materially advance the interests of all parties to the criminal justice process by providing the most reliable evidence of what is said by and to a subject, and under what circumstances."

"All parties" overstates the case, of course. Lying, skanky murderers won't like it and neither will cops or prosecutors who bend the rules when no one's looking. All the more reason for officials to act now.